Amendment to the International Traffic in Arms Regulations: International Import Certificate BIS-645P/ATF-4522/DSP-53 and Administrative Changes, 22668-22671 [2012-9081]
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Federal Register / Vol. 77, No. 74 / Tuesday, April 17, 2012 / Rules and Regulations
Pl., Rockville, MD 20855, 240–276–
8341, email:
cindy.burnsteel@fda.hhs.gov.
Novartis
Animal Health U.S., Inc. (Novartis),
3200 Northline Ave., suite 300,
Greensboro, NC 27408, has requested
that FDA withdraw approval of those
parts of NADA 139–472 for DENAGARD
(tiamulin) Type A medicated article
pertaining to the production indications
for use of increased rate of weight gain
and improved feed efficiency in swine.
Novartis requested voluntary
withdrawal of approval of these
indications for use because the product
is no longer marketed for these uses.
Revised product labeling reflecting the
withdrawal of these indications has
been approved in a supplement to
NADA 139–472.
Elsewhere in this issue of the Federal
Register, FDA gave notice that the
approval of those parts of NADA 139–
472 pertaining to the production
indications for use of increased rate of
SUPPLEMENTARY INFORMATION:
weight gain and improved feed
efficiency in swine is withdrawn,
effective April 17, 2012. As provided for
in the regulatory text of this document,
the animal drug regulations are
amended to reflect this withdrawal of
approval.
With the withdrawal of approval of
the production indications for tiamulin,
the lowest concentration of the drug in
feed now has a preslaughter withdrawal
period. In accordance with 21 CFR
558.3(b)(1)(ii), tiamulin is now a
Category II drug, and the table in 21 CFR
558.4(d) is revised to reflect that change.
However, the maximum concentration
of tiamulin in Type B feeds is not being
increased from the current 3.5 grams per
pound (g/lb) because there is an
approved 5-g/lb Type A medicated
article.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
List of Subjects in 21 CFR Part 558
Animal drugs, Animal feeds.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Director of the Center for Veterinary
Medicine, 21 CFR part 558 is amended
as follows:
PART 558—NEW ANIMAL DRUGS FOR
USE IN ANIMAL FEEDS
1. The authority citation for 21 CFR
part 558 continues to read as follows:
■
Authority: 21 U.S.C. 360b, 371.
2. In paragraph (d) of § 558.4, in the
‘‘Category I’’ table, remove the entry for
‘‘Tiamulin’’; and in the ‘‘Category II’’
table, alphabetically add a new entry for
‘‘Tiamulin’’ to read as follows:
■
§ 558.4 Requirement of a medicated feed
mill license.
*
*
*
(d) * * *
*
*
CATEGORY II
Drug
Assay limits percent 1
Type A
Type B maximum
(100x)
*
*
Tiamulin ....................................................
*
*
113.4 g/lb, 100–108 ................................
5 and 10 g/lb, 90–115 .............................
Assay limits
percent 1
Type B/C 2
*
*
3.5 g/lb (0.8%) .........................................
*
*
*
*
*
*
*
90–115
70–130
*
1 Percent
of labeled amount.
given represent ranges for either Type B or Type C medicated feeds. For those drugs that have two range limits, the first set is for a
Type B medicated feed and the second set is for a Type C medicated feed. These values (ranges) have been assigned in order to provide for
the possibility of dilution of a Type B medicated feed with lower assay limits to make Type C medicated feed.
2 Values
*
*
§ 558.600
*
*
*
administrative changes to other
sections.
DEPARTMENT OF STATE
[Amended]
22 CFR Parts 120 and 123
3. In § 558.600, in the table, remove
and reserve paragraph (e)(1)(i).
■
Dated: March 21, 2012.
Bernadette Dunham,
Director, Center for Veterinary Medicine.
[FR Doc. 2012–9196 Filed 4–16–12; 8:45 am]
RIN 1400–AC85
Effective Date: This rule is
effective May 17, 2012.
[Public Notice: 7846]
FOR FURTHER INFORMATION CONTACT:
DATES:
Amendment to the International Traffic
in Arms Regulations: International
Import Certificate BIS–645P/ATF–4522/
DSP–53 and Administrative Changes
BILLING CODE 4160–01–P
Department of State.
Final rule.
AGENCY:
ACTION:
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The Arms
Export Control Act authorizes the
President to control the import and
export of defense articles. Executive
Order 11958, as amended, delegated the
authority to regulate permanent and
temporary exports and temporary
imports of defense articles to the
Secretary of State, and delegated the
authority to regulate permanent imports
of defense articles to the Attorney
SUPPLEMENTARY INFORMATION:
The Department of State is
amending the International Traffic in
Arms Regulations (ITAR) to remove
reference to the International Import
Certificate (Form BIS–645P/ATF–4522/
DSP–53). This amendment ceases the
Department’s practice of accepting DSP–
53 submissions. Instead, the DSP–61 is
to be used by importers when necessary.
The Department also is making
SUMMARY:
Ms.
Candace M. J. Goforth, Acting Director,
Office of Defense Trade Controls Policy,
Department of State, telephone (202)
663–2792, email
DDTCResponseTeam@state.gov. ATTN:
International Import Certificate, ITAR
Section 123.4.
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Federal Register / Vol. 77, No. 74 / Tuesday, April 17, 2012 / Rules and Regulations
General. The International Import
Certificate Form BIS–645P/ATF–4522/
DSP–53 is identified as a form issued by
the Department of Commerce’s Bureau
of Industry & Security (BIS); the
Department of Justice’s Bureau of
Alcohol, Tobacco, Firearms and
Explosives (BATFE); and the
Department of State’s Directorate of
Defense Trade Controls (DDTC). It is
meant to standardize procedures used to
facilitate international trade.
DDTC receives a few hundred DSP–53
submissions a year, and typically they
are submitted by persons claiming the
temporary import licensing exemption
available at § 123.4, but who need
documentation of U.S. Government
approval of the temporary import. The
Department of State’s DSP–61
(Application/License for Temporary
Import of Unclassified Defense Articles)
is the primary means by which the
Department exercises its authority to
control the temporary import of defense
articles. Therefore, DDTC revises § 123.4
to implement its decision to no longer
accept submissions of the International
Import Certificate (DSP–53). For
temporary imports of defense articles
meeting the conditions of the exemption
at § 123.4, but for which the foreign
exporter requires documentation, the
U.S. importer will be required to obtain
a DSP–61. BATFE and BIS will continue
to adjudicate International Import
Certificate submissions for items under
their jurisdiction. DDTC also revises
§ 123.3 to specify that a DSP–61 is
accepted to support the use of a
temporary import exemption but not in
satisfaction of requirements for a
permanent import. And § 120.28(b)(1) is
amended to remove reference to the
DSP–53.
Section 120.31 is amended to update
the list of NATO countries by adding
Albania and Croatia. Section 123.1(c)(4)
is amended to replace reference to an
obsolete form (‘‘Department of Defense
Form 1513’’) with reference to the
proper documentation (‘‘Letter of Offer
and Acceptance’’). Section 123.4(c)(1) is
amended to provide a correct reference
(§ 120.1(c) rather than § 120.1(b)).
Section 123.4(c)(2) is amended to
provide updated terminology
(‘‘Electronic Export Information’’
replaces ‘‘Shipper’s Export
Declaration’’). Section 123.4(c)(3) is
amended to provide updated
terminology (proscribed ‘‘area’’ and
‘‘person,’’ in addition to ‘‘proscribed
country’’). And § 123.25(b) is amended
by removing the word ‘‘that’’ in the
statement before the colon.
The Department of State’s intention to
discontinue accepting submissions of
the DSP–53 was first published as a
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proposed rule on July 14, 2011,
soliciting public comment (76 FR
41438). The comment period ended
August 29, 2011. Three parties filed
comments. The Department’s evaluation
of the written comments and
recommendations follows.
Three commenting parties noted that
many foreign governments view the
International Import Certificate as a
means of providing not only
certification by the U.S. Government of
proposed imports, but also of providing
end-use assurances in a manner similar
to the Department’s form DSP–83
(Nontransfer and Use Certificate).
Similarly, one commenting party
suggested the Department should
provide U.S. exporters with an
explanatory notice that can be presented
to foreign officials that request an
International Import Certificate
subsequent to this rulemaking. The
intent of the International Import
Certificate is not to provide end-use
assurances; it is intended to provide
U.S. government acknowledgment of a
proposed import. For items under their
import jurisdiction, BIS and BATFE will
continue to adjudicate International
Import Certificate submissions, and
therefore will continue to provide
applicants documentation regarding
U.S. government acknowledgment of
proposed imports. For items under
Department of State import jurisdiction,
an approved DSP–61 serves as U.S.
government acknowledgement and
approval of a proposed temporary
import.
Three commenting parties expressed
concern that the Department’s proposal
to cease issuing International Import
Certificates could inadvertently disrupt
international trade. Two of the
commenting parties recommended the
Department coordinate with the
international community to ensure
alternative means of assurances are
acceptable. The Department accepts this
recommendation and notes that it has
previously expressed the intent to
discontinue the DSP–53 with the
international community at various
international conferences and at the
Wassenaar Arrangement. In these
forums, no concerns were expressed to
the Department.
One commenting party stated that the
requirement to obtain a DSP–61, if
documentation is required by a foreign
exporter, will lead to cumbersome and
unnecessary licensing reviews. The
Department acknowledges that in a
relatively small number of cases, license
review will occur when with use of the
DSP–53 it would have been avoided.
The Department notes that the DSP–61
is the appropriate means by which a
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22669
person may obtain documentation of
U.S. Government approval for the
temporary import of defense articles
otherwise eligible for the license
exemption at ITAR § 123.4.
One commenting party requested
guidance on the means by which it can
fulfill a foreign exporter’s requirement
for documentation of U.S. Government
authorization for the permanent import
of defense articles not listed on the U.S.
Munitions Import List (‘‘USMIL,’’ a
subset of the USML). BATFE has
jurisdiction over the permanent import
of defense articles, even when those
defense articles are not listed on the
USMIL. Therefore, an International
Import Certificate may be submitted to
BATFE in such instances.
One commenting party recommended
the removal of reference in the final rule
to the form DSP–85 (Application/
License for Permanent/Temporary
Export or Temporary Import of
Classified Defense Articles and Related
Classified Technical Data), noting
§ 123.4 applies only to unclassified
articles and that the ITAR is already
clear that temporary imports of
classified defense articles require use of
the DSP–85. The Department accepted
this recommendation.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the
opinion that controlling the import and
export of defense articles and services is
a foreign affairs function of the United
States Government and that rules
implementing this function are exempt
from § 553 (Rulemaking) and § 554
(Adjudications) of the Administrative
Procedure Act. Although the
Department is of the opinion that this
rule is exempt from the rulemaking
provisions of the APA, the Department
published this rule with a 45-day
provision for public comment and
without prejudice to its determination
that controlling the import and export of
defense services is a foreign affairs
function.
Regulatory Flexibility Act
Since the Department is of the
opinion that this rule is exempt from the
rulemaking provisions of 5 U.S.C. 553,
it does not require analysis under the
Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This amendment does not involve a
mandate that will result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any year and it will not significantly
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litigation, establish clear legal
standards, and reduce burden.
or uniquely affect small governments.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Executive Order 13175
The Department has determined that
this rule will not have tribal
implications, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
preempt tribal law. Accordingly,
Executive Order 13175 does not apply
to this rule.
Small Business Regulatory Enforcement
Fairness Act of 1996
This amendment has been found not
to be a major rule within the meaning
of the Small Business Regulatory
Enforcement Fairness Act of 1996.
Executive Orders 12372 and 13132
This amendment will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
it is determined that this amendment
does not have sufficient federalism
implications to require consultations or
warrant the preparation of a federalism
summary impact statement. The
regulations implementing Executive
Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this amendment.
The Department is of the opinion that
controlling the import and export of
defense articles and services is a foreign
affairs function of the United States
Government and that rules governing
the conduct of this function are exempt
from the requirements of Executive
Order 12866. However, the Department
has reviewed this rule to ensure its
consistency with the regulatory
philosophy and principles set forth in
the Executive Order.
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Executive Order 13563
The Department of State has
considered this rule in light of
Executive Order 13563, dated January
18, 2011, and affirms that this regulation
is consistent with the guidance therein.
Executive Order 12988
The Department of State has reviewed
this amendment in light of sections 3(a)
and 3(b)(2) of Executive Order 12988 to
eliminate ambiguity, minimize
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List of Subjects in 22 CFR Parts 120 and
123
Arms and munitions, Exports.
Accordingly, for the reasons set forth
above, Title 22, Chapter I, Subchapter
M, parts 120 and 123 are amended as
follows:
PART 120—PURPOSE AND
DEFINITIONS
1. The authority citation for part 120
continues to read as follows:
■
Authority: Secs. 2, 38, and 71, Pub. L. 90–
629, 90 Stat. 744 (22 U.S.C. 2752, 2778,
2797); 22 U.S.C. 2794; E.O. 11958, 42 FR
4311; E.O. 13284, 68 FR 4075; 3 CFR, 1977
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105–
261, 112 Stat. 1920.
2. Section 120.28 is amended by
revising paragraph (b)(1), redesignating
paragraph (b)(3) as paragraph (c), and
revising newly redesignated paragraph
(c) as follows:
■
Executive Order 12866
VerDate Mar<15>2010
Paperwork Reduction Act
By this rulemaking, the Department of
State will discontinue accepting one
form (DSP–53) for the certification of a
proposed temporary import of defense
articles, and require the submission of
another form (DSP–61) when there is
the requirement for documentation of
U.S. Government approval of the
temporary import of defense articles
that otherwise would be eligible for an
available license exemption. Therefore,
while in a limited number of instances
this rule will result in different
reporting and recordkeeping
requirements, it does not impose any
new reporting or recordkeeping
requirements subject to the Paperwork
Reduction Act, 44 U.S.C. chapter 35.
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§ 120.28 Listing of forms referred to in this
subchapter.
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(b) Department of Commerce, Bureau
of Industry and Security:
(1) International Import Certificate
(Form BIS–645P/ATF–4522).
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*
(c) Department of Defense, Defense
Security Cooperation Agency: Letter of
Offer and Acceptance.
■ 3. Section 120.31 is amended by
revising it to read as follows:
§ 120.31 North Atlantic Treaty
Organization.
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PART 123—LICENSES FOR THE
EXPORT OF DEFENSE ARTICLES
4. The authority citation for part 123
continues to read as follows:
■
Authority: Secs. 2, 38, and 71, Pub. L. 90–
629, 90 Stat. 744 (22 U.S.C. 2752, 2778,
2797); 22 U.S.C. 2753; E.O. 11958, 42 FR
4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C.
2651a; 22 U.S.C. 2776; Pub. L. 105–261, 112
Stat. 1920; Sec. 1205(a), Pub. L. 107–228.
5. Section 123.1 is amended by
revising paragraph (c)(4) to read as
follows:
■
§ 123.1 Requirement for export or
temporary import licenses.
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*
*
*
*
(c) * * *
(4) An application for a license under
this part for the permanent export of
defense articles sold commercially must
be accompanied by a copy of a purchase
order, letter of intent, or other
appropriate documentation. In cases
involving the U.S. Foreign Military
Sales program, three copies of the
relevant Letter of Offer and Acceptance
are required, unless the procedures of
§ 126.4(c) or § 126.6 of this subchapter
are followed.
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*
■ 6. Section 123.3 is amended by adding
paragraph (c), to read as follows:
§ 123.3
Temporary import licenses.
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(c) A DSP–61 license may be obtained
by a U.S. importer in satisfaction of
§ 123.4(c)(4) of this subchapter. If a
foreign exporter requires documentation
for a permanent import, the U.S.
importer must contact the Department
of Justice’s Bureau of Alcohol, Tobacco,
Firearms and Explosives for the
appropriate documentation. A DSP–61
will not be approved to support
permanent import requirements.
■ 7. Section 123.4 is amended by
revising paragraphs (c)(1) through (c)(3),
and adding paragraph (c)(4), to read as
follows:
§ 123.4 Temporary import license
exemptions.
*
North Atlantic Treaty Organization
(NATO) is comprised of the following
member countries: Albania, Belgium,
Bulgaria, Canada, Croatia, Czech
Republic, Denmark, Estonia, France,
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Germany, Greece, Hungary, Iceland,
Italy, Latvia, Lithuania, Luxembourg,
The Netherlands, Norway, Poland,
Portugal, Romania, Slovakia, Slovenia,
Spain, Turkey, United Kingdom, and
the United States.
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(c) * * *
(1) The importer must meet the
eligibility requirements set forth in
§ 120.1(c) of this subchapter;
(2) At the time of export, the ultimate
consignee named on the Electronic
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Export Information (EEI) must be the
same as the foreign consignee or enduser of record named at the time of
import;
(3) A stated in § 126.1 of this
subchapter, the temporary import must
not be from or on behalf of a proscribed
country, area, or person listed in that
section unless an exception has been
granted in accordance with § 126.3 of
this subchapter; and
(4) The foreign exporter must not
require documentation of U.S.
Government approval of the temporary
import. If the foreign exporter requires
documentation for a temporary import
that qualifies for an exemption under
this subchapter, the U.S. importer will
not be able to claim the exemption and
is required to obtain a DSP–61
Application/License for Temporary
Import of Unclassified Defense Articles.
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■ 8. Section 123.25 is amended by
revising paragraph (b) to read as follows:
§ 123.25
Amendments to licenses.
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(b) The following types of
amendments to a license will be
considered: Addition of U.S. freight
forwarder or U.S. consignor; change due
to an obvious typographical error;
change in source of commodity; and
change of foreign intermediate
consignee if that party is only
transporting the equipment and will not
process (e.g., integrate, modify) the
equipment. For changes in U.S. dollar
value see § 123.23.
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Dated: April 6, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2012–9081 Filed 4–16–12; 8:45 am]
BILLING CODE 4710–25–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 183
[DOD–2009–OS–0039; RIN 0790–AI55]
Defense Support to Special Events
Department of Defense.
Final rule.
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AGENCY:
ACTION:
This rule establishes
procedures and assigns responsibilities
for Special Events, sets forth procedural
guidance for the execution of Special
Events support when requested by civil
authorities or qualifying entities and
approved by the appropriate DoD
SUMMARY:
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authority, or as directed by the
President, within the United States,
including the District of Columbia, the
Commonwealth of Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern
Mariana Islands, and any other territory
or possession of the United States or any
political subdivision thereof and
elsewhere if properly approved.
DATES: This rule is effective May 17,
2012.
Ms.
Carol Corbin, 571–256–8319.
SUPPLEMENTARY INFORMATION: The
Department of Defense published a
proposed rule on November 26, 2010
(75 FR 72767–72771). One comment
was received and addressed below:
Comment: ‘‘This comment pertains to
Page 72770, Section A(iiii)G reference to
DOD support to the ‘‘National Boy Scout
Jamboree’’. Recommend that DOD not
support this event. The Boy Scouts of
America are an organization that
discriminates based on sex, sexual
orientation, and religion. DOD support
is contrary to policies of state
governments and the federal
government. Material support is against
the general principle of separation of
church and state and the important
elements of the constitution of the
United States. DOD support essentially
demonstrates an ‘‘establishment of
religion’’ and is contrary to antidiscrimination policys [sic].’’
Response: The Department of Defense
has valid statutory authority, 10 U.S.C.
2554, for providing support to the Boy
Scout jamboree.
FOR FURTHER INFORMATION CONTACT:
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
It has been certified that 32 CFR Part
183 does not:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a section of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in these Executive Orders.
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22671
Sec. 202, Pub. L. 104–4, ‘‘Unfunded
Mandates Reform Act’’
It has been certified that 32 CFR part
183 does not contain a Federal mandate
that may result in the expenditure by
State, local, and tribal governments, in
aggregate, or by the private sector, of
$100 million or more in any one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601 et seq.)
It has been certified that 32 CFR part
183 is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.)
because it would not, if promulgated,
have a significant economic impact on
a substantial number of small entities.
This rule establishes procedures and
assigns responsibilities within DoD for
Special Events in support of civil and
non-governmental entities; therefore, it
is not expected that small entities will
be affected because there will be no
economically significant regulatory
requirements placed upon them.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part
183 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
It has been certified that 32 CFR part
183 does not have federalism
implications, as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
(1) The States;
(2) The relationship between the
national government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of government.
List of Subjects in 32 CFR Part 183
Armed forces, Special events.
Accordingly, 32 CFR part 183 is
added to subchapter I to read as follows:
PART 183—DEFENSE SUPPORT OF
SPECIAL EVENTS
Sec.
183.1
183.2
183.3
183.4
183.5
183.6
Purpose.
Applicability and scope.
Definitions.
Policy.
Responsibilities.
Procedures.
Authority: 2 U.S.C. 1966, 2 U.S.C. 1970, 10
U.S.C. 372–374, 10 U.S.C. 377, 10 U.S.C.
2012, 10 U.S.C. 2553–2555, 10 U.S.C. 2564,
18 U.S.C. 1385, 18 U.S.C. 3056, 31 U.S.C.
1535–1536, 32 U.S.C. 502, 32 U.S.C. 508,
Pub. L. 94–524, and Section 5802 of Pub. L.
104–208, as amended.
§ 183.1.
Purpose.
This part:
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]]>Agencies
[Federal Register Volume 77, Number 74 (Tuesday, April 17, 2012)]
[Rules and Regulations]
[Pages 22668-22671]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9081]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Parts 120 and 123
RIN 1400-AC85
[Public Notice: 7846]
Amendment to the International Traffic in Arms Regulations:
International Import Certificate BIS-645P/ATF-4522/DSP-53 and
Administrative Changes
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to remove reference to the International
Import Certificate (Form BIS-645P/ATF-4522/DSP-53). This amendment
ceases the Department's practice of accepting DSP-53 submissions.
Instead, the DSP-61 is to be used by importers when necessary. The
Department also is making administrative changes to other sections.
DATES: Effective Date: This rule is effective May 17, 2012.
FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Acting
Director, Office of Defense Trade Controls Policy, Department of State,
telephone (202) 663-2792, email DDTCResponseTeam@state.gov. ATTN:
International Import Certificate, ITAR Section 123.4.
SUPPLEMENTARY INFORMATION: The Arms Export Control Act authorizes the
President to control the import and export of defense articles.
Executive Order 11958, as amended, delegated the authority to regulate
permanent and temporary exports and temporary imports of defense
articles to the Secretary of State, and delegated the authority to
regulate permanent imports of defense articles to the Attorney
[[Page 22669]]
General. The International Import Certificate Form BIS-645P/ATF-4522/
DSP-53 is identified as a form issued by the Department of Commerce's
Bureau of Industry & Security (BIS); the Department of Justice's Bureau
of Alcohol, Tobacco, Firearms and Explosives (BATFE); and the
Department of State's Directorate of Defense Trade Controls (DDTC). It
is meant to standardize procedures used to facilitate international
trade.
DDTC receives a few hundred DSP-53 submissions a year, and
typically they are submitted by persons claiming the temporary import
licensing exemption available at Sec. 123.4, but who need
documentation of U.S. Government approval of the temporary import. The
Department of State's DSP-61 (Application/License for Temporary Import
of Unclassified Defense Articles) is the primary means by which the
Department exercises its authority to control the temporary import of
defense articles. Therefore, DDTC revises Sec. 123.4 to implement its
decision to no longer accept submissions of the International Import
Certificate (DSP-53). For temporary imports of defense articles meeting
the conditions of the exemption at Sec. 123.4, but for which the
foreign exporter requires documentation, the U.S. importer will be
required to obtain a DSP-61. BATFE and BIS will continue to adjudicate
International Import Certificate submissions for items under their
jurisdiction. DDTC also revises Sec. 123.3 to specify that a DSP-61 is
accepted to support the use of a temporary import exemption but not in
satisfaction of requirements for a permanent import. And Sec.
120.28(b)(1) is amended to remove reference to the DSP-53.
Section 120.31 is amended to update the list of NATO countries by
adding Albania and Croatia. Section 123.1(c)(4) is amended to replace
reference to an obsolete form (``Department of Defense Form 1513'')
with reference to the proper documentation (``Letter of Offer and
Acceptance''). Section 123.4(c)(1) is amended to provide a correct
reference (Sec. 120.1(c) rather than Sec. 120.1(b)). Section
123.4(c)(2) is amended to provide updated terminology (``Electronic
Export Information'' replaces ``Shipper's Export Declaration'').
Section 123.4(c)(3) is amended to provide updated terminology
(proscribed ``area'' and ``person,'' in addition to ``proscribed
country''). And Sec. 123.25(b) is amended by removing the word
``that'' in the statement before the colon.
The Department of State's intention to discontinue accepting
submissions of the DSP-53 was first published as a proposed rule on
July 14, 2011, soliciting public comment (76 FR 41438). The comment
period ended August 29, 2011. Three parties filed comments. The
Department's evaluation of the written comments and recommendations
follows.
Three commenting parties noted that many foreign governments view
the International Import Certificate as a means of providing not only
certification by the U.S. Government of proposed imports, but also of
providing end-use assurances in a manner similar to the Department's
form DSP-83 (Nontransfer and Use Certificate). Similarly, one
commenting party suggested the Department should provide U.S. exporters
with an explanatory notice that can be presented to foreign officials
that request an International Import Certificate subsequent to this
rulemaking. The intent of the International Import Certificate is not
to provide end-use assurances; it is intended to provide U.S.
government acknowledgment of a proposed import. For items under their
import jurisdiction, BIS and BATFE will continue to adjudicate
International Import Certificate submissions, and therefore will
continue to provide applicants documentation regarding U.S. government
acknowledgment of proposed imports. For items under Department of State
import jurisdiction, an approved DSP-61 serves as U.S. government
acknowledgement and approval of a proposed temporary import.
Three commenting parties expressed concern that the Department's
proposal to cease issuing International Import Certificates could
inadvertently disrupt international trade. Two of the commenting
parties recommended the Department coordinate with the international
community to ensure alternative means of assurances are acceptable. The
Department accepts this recommendation and notes that it has previously
expressed the intent to discontinue the DSP-53 with the international
community at various international conferences and at the Wassenaar
Arrangement. In these forums, no concerns were expressed to the
Department.
One commenting party stated that the requirement to obtain a DSP-
61, if documentation is required by a foreign exporter, will lead to
cumbersome and unnecessary licensing reviews. The Department
acknowledges that in a relatively small number of cases, license review
will occur when with use of the DSP-53 it would have been avoided. The
Department notes that the DSP-61 is the appropriate means by which a
person may obtain documentation of U.S. Government approval for the
temporary import of defense articles otherwise eligible for the license
exemption at ITAR Sec. 123.4.
One commenting party requested guidance on the means by which it
can fulfill a foreign exporter's requirement for documentation of U.S.
Government authorization for the permanent import of defense articles
not listed on the U.S. Munitions Import List (``USMIL,'' a subset of
the USML). BATFE has jurisdiction over the permanent import of defense
articles, even when those defense articles are not listed on the USMIL.
Therefore, an International Import Certificate may be submitted to
BATFE in such instances.
One commenting party recommended the removal of reference in the
final rule to the form DSP-85 (Application/License for Permanent/
Temporary Export or Temporary Import of Classified Defense Articles and
Related Classified Technical Data), noting Sec. 123.4 applies only to
unclassified articles and that the ITAR is already clear that temporary
imports of classified defense articles require use of the DSP-85. The
Department accepted this recommendation.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling the
import and export of defense articles and services is a foreign affairs
function of the United States Government and that rules implementing
this function are exempt from Sec. 553 (Rulemaking) and Sec. 554
(Adjudications) of the Administrative Procedure Act. Although the
Department is of the opinion that this rule is exempt from the
rulemaking provisions of the APA, the Department published this rule
with a 45-day provision for public comment and without prejudice to its
determination that controlling the import and export of defense
services is a foreign affairs function.
Regulatory Flexibility Act
Since the Department is of the opinion that this rule is exempt
from the rulemaking provisions of 5 U.S.C. 553, it does not require
analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This amendment does not involve a mandate that will result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year and it
will not significantly
[[Page 22670]]
or uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Executive Order 13175
The Department has determined that this rule will not have tribal
implications, will not impose substantial direct compliance costs on
Indian tribal governments, and will not preempt tribal law.
Accordingly, Executive Order 13175 does not apply to this rule.
Small Business Regulatory Enforcement Fairness Act of 1996
This amendment has been found not to be a major rule within the
meaning of the Small Business Regulatory Enforcement Fairness Act of
1996.
Executive Orders 12372 and 13132
This amendment will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this amendment does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this amendment.
Executive Order 12866
The Department is of the opinion that controlling the import and
export of defense articles and services is a foreign affairs function
of the United States Government and that rules governing the conduct of
this function are exempt from the requirements of Executive Order
12866. However, the Department has reviewed this rule to ensure its
consistency with the regulatory philosophy and principles set forth in
the Executive Order.
Executive Order 13563
The Department of State has considered this rule in light of
Executive Order 13563, dated January 18, 2011, and affirms that this
regulation is consistent with the guidance therein.
Executive Order 12988
The Department of State has reviewed this amendment in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Paperwork Reduction Act
By this rulemaking, the Department of State will discontinue
accepting one form (DSP-53) for the certification of a proposed
temporary import of defense articles, and require the submission of
another form (DSP-61) when there is the requirement for documentation
of U.S. Government approval of the temporary import of defense articles
that otherwise would be eligible for an available license exemption.
Therefore, while in a limited number of instances this rule will result
in different reporting and recordkeeping requirements, it does not
impose any new reporting or recordkeeping requirements subject to the
Paperwork Reduction Act, 44 U.S.C. chapter 35.
List of Subjects in 22 CFR Parts 120 and 123
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, parts 120 and 123 are amended as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; E.O. 11958, 42 FR 4311;
E.O. 13284, 68 FR 4075; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a;
Pub. L. 105-261, 112 Stat. 1920.
0
2. Section 120.28 is amended by revising paragraph (b)(1),
redesignating paragraph (b)(3) as paragraph (c), and revising newly
redesignated paragraph (c) as follows:
Sec. 120.28 Listing of forms referred to in this subchapter.
* * * * *
(b) Department of Commerce, Bureau of Industry and Security:
(1) International Import Certificate (Form BIS-645P/ATF-4522).
* * * * *
(c) Department of Defense, Defense Security Cooperation Agency:
Letter of Offer and Acceptance.
0
3. Section 120.31 is amended by revising it to read as follows:
Sec. 120.31 North Atlantic Treaty Organization.
North Atlantic Treaty Organization (NATO) is comprised of the
following member countries: Albania, Belgium, Bulgaria, Canada,
Croatia, Czech Republic, Denmark, Estonia, France, Germany, Greece,
Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, The
Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, Turkey, United Kingdom, and the United States.
PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES
0
4. The authority citation for part 123 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR 4311; 3
CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-
261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228.
0
5. Section 123.1 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 123.1 Requirement for export or temporary import licenses.
* * * * *
(c) * * *
(4) An application for a license under this part for the permanent
export of defense articles sold commercially must be accompanied by a
copy of a purchase order, letter of intent, or other appropriate
documentation. In cases involving the U.S. Foreign Military Sales
program, three copies of the relevant Letter of Offer and Acceptance
are required, unless the procedures of Sec. 126.4(c) or Sec. 126.6 of
this subchapter are followed.
* * * * *
0
6. Section 123.3 is amended by adding paragraph (c), to read as
follows:
Sec. 123.3 Temporary import licenses.
* * * * *
(c) A DSP-61 license may be obtained by a U.S. importer in
satisfaction of Sec. 123.4(c)(4) of this subchapter. If a foreign
exporter requires documentation for a permanent import, the U.S.
importer must contact the Department of Justice's Bureau of Alcohol,
Tobacco, Firearms and Explosives for the appropriate documentation. A
DSP-61 will not be approved to support permanent import requirements.
0
7. Section 123.4 is amended by revising paragraphs (c)(1) through
(c)(3), and adding paragraph (c)(4), to read as follows:
Sec. 123.4 Temporary import license exemptions.
* * * * *
(c) * * *
(1) The importer must meet the eligibility requirements set forth
in Sec. 120.1(c) of this subchapter;
(2) At the time of export, the ultimate consignee named on the
Electronic
[[Page 22671]]
Export Information (EEI) must be the same as the foreign consignee or
end-user of record named at the time of import;
(3) A stated in Sec. 126.1 of this subchapter, the temporary
import must not be from or on behalf of a proscribed country, area, or
person listed in that section unless an exception has been granted in
accordance with Sec. 126.3 of this subchapter; and
(4) The foreign exporter must not require documentation of U.S.
Government approval of the temporary import. If the foreign exporter
requires documentation for a temporary import that qualifies for an
exemption under this subchapter, the U.S. importer will not be able to
claim the exemption and is required to obtain a DSP-61 Application/
License for Temporary Import of Unclassified Defense Articles.
* * * * *
0
8. Section 123.25 is amended by revising paragraph (b) to read as
follows:
Sec. 123.25 Amendments to licenses.
* * * * *
(b) The following types of amendments to a license will be
considered: Addition of U.S. freight forwarder or U.S. consignor;
change due to an obvious typographical error; change in source of
commodity; and change of foreign intermediate consignee if that party
is only transporting the equipment and will not process (e.g.,
integrate, modify) the equipment. For changes in U.S. dollar value see
Sec. 123.23.
* * * * *
Dated: April 6, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2012-9081 Filed 4-16-12; 8:45 am]
BILLING CODE 4710-25-P
